The original idea of the patent system was to stimulate innovation and
research by awarding innovators and researchers with a time limited monopoly
on their ideas in return for them disclosing those ideas to the public.
The feared alternative was for this knowledge and innovation to be kept secret
as trade secrets by the people and companies making them, and these great
ideas then never reaching the general public to be built upon by others and
through that generating even more wealth for society than otherwise would be
the case. The original idea was in other words not as much to protect ideas
from being used by others, but to encourage the publication of the ideas so
they could be used by others. I doubt anyone with inside knowledge of the
industry can say that goal is achieved by the software patent regime in the
US today.

You want to steal my great idea

A very typical argument you get when arguing for the dissolution of patents
is that you want to prohibit the people who come up with good ideas and do
research from cashing in on their ideas and research. Many outright accuse
you of wanting to be able to steal other people's good ideas. Such arguments
can be hard to counter if you are taken unaware. One natural response I see
many people come up with is trying to explain how all ideas build upon earlier
ideas and that no idea is truly original and as such nobody is stealing nobody
else's idea. I know I have fallen into that trap myself at times. The problem
with this line of reasoning is that its too abstract so unless you are discussing
with a true intellectual it will fall on deaf ears and the admission that they
are standing on the shoulders of giants come hard to many.

The counter argument need to instead be that, yes of course we should
help inventors to earn money on their inventions, but in the case of
software, patents doesn't do that. Making software today is complex
and a program is using a multitude functions and algorithms to be able to
do what it does. If you do come up with a really good idea while making your
software, which you can patent, you will not really be able to cash in on it,
as your established and bigger competitors will have patented so many of
the other things your program needs to do that you can't really use the patent
against them to get ahead anyway. You can of course cross license with your
competitors, but then the patents just mean forcing businesses to spend more
money on legal fees and bureaucracy, which is not exactly the perfect crib
for the generation of new ideas.

Instead the situation is that you have so many patents, many highly questionable and
obscure, which can be used against you even the value of getting to market first
with your idea is lost because as soon as people see you earn money the vultures
of the software patent field will be upon you. A good example here is
a Microsoft patent where they clearly have taken the ideas of the KDE developer Torsten Rahn made some small changes to it and patented
it just before the original developers had reached the stage in their development
cycle where it became evident that those extenstions where the logical next
step, at which point they implemented them not knowing Microsoft had patented
the improvements in the meantime. So instead of software patents protecting
the inventors it have become a tool of idea theft.

And when these things happen, for the small inventor who came up with the
original idea the legal cost of fighting these patent lawsuits will be so
high that in most cases they are forced to leave the thief with its loot.
And such a system is not helping the inventors to earn money on their ideas.

On the other side the software market where things moves so fast, there is
much more value in being able to bring your great ideas to market quickly
and without hindrances, so a software market without patent monopolies will
reward innovators much more than the current market would. In fact if you look
at the history of the computing sector you would see that it have performed
so well and made so many smart people rich, not because they where able to take
out patents, but rather the opposite. The lack of ability to lock in customers
and lock out competitors have created most of todays success stories. Would
the IT sector be where it was today if Xerox had patents on the making a windowed
GUI, if IBM had patents on their original PC BIOS, if Apple had a patent on
using the mice, if AT&T had patents on large parts of Unix and so on. The
ability to inventors to build upon what the rest of the industry did and
add their own great ideas to the mix rewarded the innovators and created
most of todays giants.

True enough you could claim that many of these cases where about people
stealing other people's ideas. On the other side there is clearly no other
sector which have rewarded smart and innovative people with more money than
the IT sector during this period. Smart inventors are best protected by being
allowed to run free with their ideas, and they can't run free in the IP
minefield the computing sector is becoming. The case for software patents
rewarding the innovative can only be true if you assume that the smart and
innovative people would only come up with one good idea ever. In such a
scenario absolute protection of the idea would be more valuable than being
able to bring your ideas to market. But the fact is that smart people as a
consequence of being smart come up with not one, but a lot of ideas.

Don't let the discussion glide out

To sum up with article I would like to remind everyone that the most
important thing to do when discussing anything is making sure the discussion
is narrow enough to be able to discuss it in a meaningful way. Firstly make
sure the discussion is about software patents and not 'intellectual property'
and make it clear that you are talking about software patents and not patents
in general. For my own part I say that I know the software sector and how
patents work out there so that I can discuss, but wether patents work
better or worse in other sectors I leave to people in those sectors to
bring up as they know their fields and how patents impact those fields
much better than I do. While much can probably be said about copyright,
trademarks, trade secrets and patenting in other sectors the problem spaces
tend to be very different and not really meaningful to discuss in one go.
To often have I seen situations where people could probably been brought around
on the issue of software patents, but it never got to that as the discussion
got sidetracked by discussions on copyright length or trademark protection.
Or good arguments against software patents not getting through due to
the debate bringing in examples from other sectors facing very different
conditions and constraints.

Thanks goes to the Google search engine,
Slashdot,
Groklaw, Lawrence Lessig and multiple other resources. Without your shoulders to stand
on I would never have been able to write this article.

About the author:The author, Christian Schaller, is Business Development Manager for GNU/Linux multimedia specialist Fluendo. He serves on the GNOME Foundation board of directors.If you would like to see your thoughts or experiences with technology published, please consider writing an article for OSNews.